{"id":9091,"date":"2017-07-29T22:18:48","date_gmt":"2017-07-30T04:18:48","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=9091"},"modified":"2017-07-30T09:56:57","modified_gmt":"2017-07-30T15:56:57","slug":"petitions-for-rulemaking","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=9091","title":{"rendered":"Petitions for rulemaking"},"content":{"rendered":"

The case of Flyers’ Rights v. FAA<\/em> caught my eye today, as I am a tall person who is ever-aware of the shrinking amount of leg room on airline flights. \u00a0In Flyers’ Rights<\/em>, the appellant appealed to the D.C. Circuit after the FAA denied Flyers’ Rights petition for a rulemaking by the FAA. \u00a0The proposed rulemaking had to do with the minimum amount of leg room that should be provided on a flight.<\/p>\n

That got me to wondering whether the USPTO ever receives any proposed petitions for rulemaking and what some good new rules might be. \u00a0For example, if the vast majority of requests for amendments in IPR proceedings are being denied by the PTAB, should an industry group petition for a rulemaking to correct that situation?<\/p>\n

Or, in view of the statement in\u00a0Versata Development Group v. SAP America, Inc.<\/em><\/span> that states:<\/p>\n

The section 101 analysis applied by the PTAB was not legally erroneous under <\/span>Mayo<\/em> and <\/span>Alice.<\/em> And its underlying fact findings and credibility determinations are supported by substantial evidence in the record. <\/span><\/p><\/blockquote>\n

Versata Development Group v. SAP America, Inc.<\/em>, 793 F.3d 1306, 1336 (Fed. Cir. 2015)<\/span><\/p>\n

and thus implies that the USPTO’s \u00a7101 determinations are based on underlying factual findings (e.g., whether a claim as a whole recites well-understood, routine, and conventional activities), \u00a0should an industry group petition for a rulemaking that a USPTO rejection of a claim under \u00a7101 must provide evidence<\/span> that the proposed claim recites well-understood, routine, and conventional activities?<\/p>\n

The D.C. Circuit’s opinion in\u00a0Flyers’ Rights v. FAA<\/em> is available [here<\/a>].<\/span><\/p>\n

The oral argument in <\/span>Flyers’ Rights v. FAA<\/em> is available [here<\/a>].<\/span><\/p>\n

My favorite quote from the\u00a0Flyers’ Rights v. FAA<\/em><\/span> decision is:<\/p>\n

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But that is not how judicial review works. We cannot affirm the sufficiency of what we cannot see. \u201c[A]n agency decision based on \u2018reliable data reposing in the [agency\u2019s] files\u2019\u201d but hidden from judicial view \u201csimply cannot withstand scrutiny.\u201d <\/span>United States Lines, Inc. v. Federal Maritime Comm\u2019n<\/span>, 584 F.2d 519, 535 (D.C. Cir. 1978). <\/span><\/p>\n

Indeed, we have long held that, when \u201cthe data relied on by [an agency] in reaching its decision is not included in the administrative record and is not disclosed to the court[,]\u201d we cannot \u201cdetermine whether the final agency decision reflects the rational outcome of the agency\u2019s consideration of all relevant factors[.]\u201d <\/span>United States Lines<\/span>, 584 F.2d at 533 (footnote omitted). Whatever deference we generally accord to administrative agencies, \u201cwe will not defer to a declaration of fact that is \u2018capable of exact proof\u2019 but is unsupported by any evidence.\u201d <\/span>McDonnell Douglas Corp. v. United States Dep\u2019t of the Air Force<\/span>, 375 F.3d 1182, 1190 n.4 (D.C. Cir. 2004) (citation omitted).<\/span> <\/span><\/p><\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n

Flyers’ Rights v. FAA<\/em>, No. 16-1011 (D.C. Cir. July 28, 2017) at page 13.<\/span><\/p>\n

Query: \u00a0If the Director of the USPTO utilizes panel stacking to implement new USPTO procedure in place of notice and comment rulemaking, has the Director disclosed all the data relied on in reaching its decision?<\/span><\/p>\n

For more on petitions for rulemaking under the APA see: \u00a0[link<\/a>].<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

The case of Flyers’ Rights v. FAA caught my eye today, as I am a tall person who is ever-aware of the shrinking amount of leg room on airline flights. \u00a0In Flyers’ Rights, the appellant appealed to the D.C. Circuit after the FAA denied Flyers’ Rights petition for a rulemaking by the FAA. \u00a0The proposed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9091"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9091"}],"version-history":[{"count":16,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9091\/revisions"}],"predecessor-version":[{"id":9098,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9091\/revisions\/9098"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9091"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9091"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9091"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}